Carrington v The Queen

[2021] NSWCCA 257

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Carrington v R [2021] NSWCCA 257

Hearing dates:

18 October 2021

Date of orders:

5 November 2021

Decision date:

05 November 2021

Before:

Beech-Jones CJ at CL at [1];
R A Hulme J at [2];
Dhanji J at [81]

Decision:

1. Grant leave to appeal and allow the appeal.

2. Quash the sentence imposed in the District Court on 29 October 2020.

3. Sentence the offender to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years, 6 months. The commencement date of the sentence is 29 January 2020.

Note that the non-parole period will expire on 28 July 2027 whereupon the offender will become eligible for release on parole.

4. Revoke the suppression order and the non-publication order made in the District Court on 20 August 2020 and in lieu, note the application of s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 prohibiting identification of the victim and the offender.

Catchwords:

CRIME – sentence appeal – alleged failure to have regard to favourable evidence about three statutory mitigating factors – concession by defence counsel at sentence that each mitigating factor was not established – alleged error contrary to case at first instance – ground dismissed

CRIME – sentence appeal – manifest excess – aggregate sentence – guilty plea – incest – assault occasioning actual bodily harm – incite aggravated act of indecency – further offences taken into account on Forms 1 – father-daughter relationship between offender and victim – uncharged acts – victim at lowest of age range of offence – breach of trust – victim not a willing participant in incest – De Simoni principle – offences part of a course of conduct over a significant period – objective severity above mid-range – starting points of indicative sentences near the maximum penalty – differential unable to be explained by Form 1 offences – aggregate sentence manifestly excessive - ground upheld – applicant resentenced

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Court Suppression and Non-publication Orders Act 2006 (NSW)

Crimes Act 1900 (NSW), ss 59(1), 61M(1), 61O, 78A(1), 578A

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v West [2014] NSWCCA 250

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Mr Carrington (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms S Goodwin (Applicant)
Ms C Curtis (Crown)

Solicitors:
AC Law Group
Solicitor for Public Prosecutions

File Number(s):

2019/293615

 Decision under appeal 

Court or tribunal:

District Court

Citation:

R v Carrington (a pseudonym) [2020] NSWDC 748

Date of Decision:

29 October 2020

Before:

Colefax SC DCJ

File Number(s):

2019/293615

Judgment

1. BEECH-JONES CJ at CL: I have read the judgments of R A Hulme J and Dhanji J. While I accept the force of Dhanji J’s analysis, I agree with the judgment of R A Hulme J and the orders his Honour proposes. It is necessary to note one additional point. The effect of the matters noted in [11] and [64] of the judgment of R A Hulme J is that the applicant is to be resentenced on the basis that the victim was not a willing participant in the applicant’s sexual abuse of her but that he did not have knowledge of that. As noted by R A Hulme J (at [11]) if he was to be sentenced on the basis that he was aware that she was not consenting then the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 may have been engaged in that those circumstances would amount to his having committed a more serious crime than an offence of incest under s 78A(1) of the Crimes Act 1900 (NSW). That said the circumstances of the offending as recounted in the judgment of R A Hulme J do not provide any basis for any belief that might have held that the victim was consenting.”

2. R A HULME J: A man who cannot be identified (and is referred to in the title of this judgment by a pseudonym) seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Colefax SC DCJ in the District Court at Campbelltown on 29 October 2020.

3. The man cannot be identified as that could lead to the identification of the victim of his offences, his daughter. He will be referred to herein as “the applicant”.

4. The aggregate sentence imposed was imprisonment for 16 years with a non-parole period of 12 years. The commencement date for the sentence was backdated to 29 January 2020 because of time the applicant had already spent in custody.

5. Details of the offences to which the applicant had pleaded guilty, including the indicative sentences assessed for each of them, are as follows. There was a 25% reduction on account of the utilitarian value of the pleas of guilty. The judge also took into account at the applicant’s request a number of further offences listed on Form 1 documents. (Each offence is identified by its “Sequence” number.)

Offence	Maximum penalty	Indicative sentence
Seq 1: Assault occasioning actual bodily harm (AOABH) – s 59(1) Crimes Act	5 years	3 years
Seq 16: Aggravated (under authority) incite act of indecency – s 61O Crimes Act ● Form 1: Seq 3 and Seq 4 – (Each) AOABH	5 years	3 years, 9 months
Seq 17: Incest with person ≥ 16 years – s 78A(1) Crimes Act ● Form 1: Seq 5 – Aggravated indecent assault – s 61M(1) Crimes Act	8 years	5 years, 3 months
Seq 19: Incest with person ≥ 16 years – s 78A(1) Crimes Act ● Form 1: Seq 18 – Incest with person ≥ 16 years	8 years	5 years, 3 months
Seq 21: Incest with person ≥ 16 years ● Form 1: Seq 20 - Incest with person ≥ 16 years	8 years	5 years, 3 months

6. The applicant asks for leave to appeal on two grounds:

1   The sentencing judge erred in failing to have regard to significant positive evidence relating to remorse, the applicant’s prospect of rehabilitation and likelihood of reoffending.

2   The sentence is manifestly excessive.

7. There is no merit in the first ground. However, the aggregate sentence is manifestly excessive and should be set aside. The applicant should be resentenced to a lesser term as set out at the end of this judgment.

Unnecessary suppression and non-publication orders

8. As a matter of housekeeping it will be necessary to revoke unnecessary orders made by the sentencing judge. Pursuant to the Court Suppression and Non-publication Orders Act 2006 (NSW), his Honour made “a suppression order of the name of the offender and a non-publication order of the name of the complainant or complainants and of anything else that might identify either of them directly or indirectly”. ^[1]

   1. Proceedings on sentence, tcpt, 20 August 2020, p 1.33 (POS)

9. Such orders need not be made when they are not required and they were not required in this case. All that was required was for it to be noted that the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act apply by default to prohibit publication of anything that might identify the victim. Publication or broadcast of the applicant’s name would tend to identify the victim because she is his daughter; accordingly the statutory prohibitions would apply to his name as well.

The offences

10. The following is drawn from a statement of agreed facts. Where the description of an incident constituted an offence for which the applicant was being sentenced, either as a primary offence or one being taken into account, it is indicated by reference to the charge sequence number. There were also a multitude of incidents that were not the subject of charges. Reference to them was included in the statement of agreed facts to make good the Crown’s contention that the charged offences were not isolated incidents.

11. The Crown conceded that a number of instances of sexual intercourse that occurred after the victim turned 16 towards the end of 2009 were not the subject of charges because the victim was unable to particularise them. It also conceded that the Crown could not negate consent in respect of some of them. That does not appear to be a relevant matter given the offence of incest is constituted only by the occurrence of sexual intercourse between close family members. A lack of consent is not an essential element of the offence. (Although if there was no consent, care would be required to avoid transgression of the principle discussed in R v De Simoni. Lack of consent and an offender’s knowledge of it are the additional elements of a more serious offence.)

12. The victim was born in 1993 and was the eldest of four children born to the applicant and his wife. Because of circumstances not presently relevant the applicant did not live with the family for the first four years of the victim’s life. The family were heavily involved with a Christian church and she was brought up in a strict religious environment. The applicant was a strict disciplinarian when she was young and he would pinch, slap and spank her if she was disobedient. He would not permit her to mix with non-Christian children, or with boys.

13. There were three offences of assault occasioning actual bodily harm. One occurred in 2007 and the other two in mid-2009. They each involved the applicant wrapping a leather belt around his hand and then hitting the victim around the legs and bottom multiple times. The first occasion (Seq 1) occurred when she was aged 13 after he found out she had had sex with a boyfriend. She was left with red marks and bruising over her legs.

14. She was aged 15 when the second and third assaults occurred. The second (Seq 3) was after the applicant found out she had been running up the phone bill speaking to a boy from her church youth group. She cried in pain and when she backed away from him, he stopped the beating and pushed her, causing her to fall against a piece of furniture. He then punched her in the face. She was left with significant pain to her face, ear and legs.

15. The third occasion (Seq 4) was when the school principal reported that she had developed feelings towards a boy at school. The applicant took her home and delivered a beating similar to the previous, holding her by the arm and hitting her with the belt wrapped around his hand. Again, she sustained significant pain and was left with red marks and scratches. He threatened her at the end that “if you do this again, you will get a lead pipe”.

16. The offence of incite aggravated act of indecency (Seq 16) occurred the day after the first of the assaults, during 2007 when she was aged 13 and he was concerned about her having sex with a boyfriend. He took her to a medical clinic and asked a doctor to carry out a “virginity examination”. Seemingly not satisfied with the result (which is not stated), he purported to carry out his own examination when they got home. The victim was required to lie on a coffee table, naked from the waist down with her legs up as he visually inspected her vagina. She could not recall if he touched her, but she felt extremely embarrassed and uncomfortable.

17. The victim was withheld from the school for the remainder of 2007 before being allowed to return the following year.

18. On 22 May 2009 the victim told an uncle about having been beaten. This led to her complaining to others and the police became involved. Officers spoke with the victim and to her parents. A domestic violence incident was recorded. The agreed facts do not indicate that anything further occurred except that the relationship between the applicant and the victim changed. He began to spend more time with her and her younger sister, and he relaxed some of his disciplinary rules. Towards the end of 2009 and into 2010 he began to confide in her about his personal issues, including problems with his marriage to her mother.

19. On a night between April and June 2010 when the victim was aged 16 the applicant went to her bed, put his hand under the blankets and rubbed over her genital area, first over her pyjamas and then by direct contact. The victim was confused and did not know what to do; she froze and pretended to be asleep. She could not tell him to stop because she feared a beating. He desisted after a short time and left the room. This constituted the offence of aggravated indecent assault (Seq 5).

20. The victim did not disclose this incident to anyone because she feared she would not be believed. Additionally, she had been taught not to trust people from outside their church.

21. There followed a series of instances over the ensuing weeks in which the applicant developed a routine of taking the victim to his bedroom, removing her lower garments and rubbing the area of her vagina. This would occur after the victim’s mother had left for work. After about three weeks he progressed to inserting his fingers into her vagina. She did not complain to anyone because she feared being punished and not being believed.

22. Over the course of a couple of weeks around this time the applicant would also approach the victim in the evening as she washed the dishes and, while no-one else was about, he would put his hand into her underwear.

23. The morning ritual of digital penetration in the applicant’s bedroom soon progressed to her being required to remove her clothing and him engaging in full penile/vaginal sexual intercourse. He would remove his penis and ejaculate over her pubic region and then wipe the semen with tissues. She lay on the bed frozen with her eyes closed. The description of the first occasion of this occurring includes her being scared and not looking at him as she got off the bed. She went to have a shower as she felt disgusted. When she emerged from the bathroom, he took her to his bedroom and handed her a folded note that read, “DO NOT TELL ANYONE”. This was the first of the offences of incest with a person aged 16 years or over (Seq 17). A further instance of this offence occurred the following morning (Seq 18).

24. The victim still refrained from telling anyone. She feared she would not be believed, or that she would be blamed and that he would punish her.

25. It was an agreed fact that the applicant continued to have sex with the victim first thing every morning on school days for the next couple of weeks, but it did not occur when the victim’s mother was at home. Subsequently, the applicant began to start questioning the victim about her menstruation. Towards the end of menstruating she dreaded that the applicant would start having sex with her again.

26. There was an occasion when the applicant gave the victim $20 to buy some make-up and she bought some foundation. He asked what she had bought and when she told him he said, “You’ll be wearing that because of me”. This made her uncomfortable as she thought he wanted her to wear it and look good for him. When the applicant worked out on gym equipment in his garage, he asked her whether he looked better. She agreed, not wanting to say anything negative to him.

27. In May-June 2010, the victim accompanied the applicant to a work function. In the car on the way, he told her they were going “on a date”. Afterwards in the car he rubbed the victim’s breasts and crotch, over her clothing, before proceeding to drive home.

28. On another occasion he rubbed over her crotch on the outside of her clothing when they were in the car and the rest of the family were asleep. That was when the family travelled to the country to visit relatives.

29. The applicant had intercourse with the victim in the car when they went out together to the shops during that visit (Seq 19). The agreed facts include that she was fearful he would hurt her if she did not comply, and during the act itself she did not look at him because she was “so scared she was shaking”. That evening, as they sat watching television with no-one else about, he put his hand inside her trackpants and underwear and rubbed her clitoris until she pulled his hand away.

30. The morning after the family had arrived back home in Sydney the applicant had intercourse with the victim in the master bedroom (Seq 20). She did not say anything because she was afraid of him.

31. Each morning for the next couple of weeks the applicant had sexual intercourse with the victim in the same routine-like manner, except if she was menstruating or the victim’s mother was home. On one of these occasions the victim recalled the applicant said to her “You would look nicer if you lost some weight from your thighs”. She felt very upset and as if she was not even on the level of being considered human. Rather, she felt like a slave who was forced to do whatever the applicant wanted.

32. The applicant continued subjecting the victim to sexual intercourse of a morning and she did not know how to stop it. She had suicidal thoughts. She began to run a knife along her forearm, causing light bleeding. She considered running away but had been taught not to trust anyone outside the church, and she assumed they would side with her father.

33. The applicant asked her whether he loved him more than a male friend of hers. This made her uncomfortable as she knew he was talking about a romantic style of love. She told him what he wanted to hear.

34. The victim persuaded her parents to allow her to stay in the country with an aunt during the end of term 2 school holidays. Prior to her leaving the applicant created an email account for her so they could communicate while she was away. The account name was “iluv[…]@y7mail.com” (with the redacted part being her nickname). During the holiday the offender sent her emails of a romantic nature. They included him declaring his love for her and requiring her to do likewise for him; asking her to leave her boyfriend and commit herself to him; and proposing they could run away together and get married and she could go to university and have a career.

35. The victim’s aunt found the emails. The applicant’s wife was informed and discussions within the family ensued. The victim’s mother attributed blame to her daughter, saying that she had seduced the applicant. The mother downplayed talk of the matter being reported to the police, saying it would destroy the family and would put the applicant in gaol. She told the victim, “You’re going to ruin your family just for this”. The applicant sought to downplay the true nature of the emails, saying they were just to convince the victim to come home to the family.

36. For a time the victim moved back to live with the family but then she returned to live with relatives in the country. The agreed facts include further reference to the mother having attributed blame to the victim, alleging the applicant had told her that the victim always seduced him and that it was not his fault.

37. There came a time when the family went on holiday with the victim’s grandmother and her partner. At one point the applicant persuaded the victim to come to the bathroom of their hotel room for a private conversation. She went with him, not wanting to cause a scene. There he told her that he missed her and that he still wanted to be with her. She rebuffed him and left the bathroom.

38. The victim made a complaint and provided a statement to police in relation to physical abuse by the applicant. She did not feel comfortable disclosing any sexual abuse at that time. She became estranged from the applicant, her mother and her sister after doing this.

39. The victim began a relationship in around mid-2011 and married the following year. She disclosed the applicant’s sexual abuse to her husband and his family. She eventually made a full disclosure to police and others in 2018 and an investigation commenced. In a pre-text telephone call with the applicant on 19 August 2019 the applicant told the victim he was sorry for what he had done to her. He acknowledged he had done horrible things and likened himself to Hitler, or worse. He accepted that even asking for forgiveness could not fix the past. He was arrested and charged on 19 September 2019.

The judge’s assessment of the gravity of the offences

40. The learned sentencing judge made an assessment of the objective seriousness of each of the principal offences. In respect of the Form 1 offences he was asked to take into account, he provided a description of the extent to which there would be an effect upon the relevant principal offence. (There is one exception; he inadvertently made a finding of objective seriousness for the offence in Sequence 20 when he probably intended to indicate the effect it had on the assessment of sentence for Sequence 21.)

41. The findings were:

Sequence	Offence	Finding
Seq 1	AOABH	“above the mid-range and into the upper range”
Seq 3 (Form 1 for Seq 16)	AOABH	“a significant increase”
Seq 4 (Form 1 for Seq 16)	AOABH	“a meaningful increase”
Seq 5 (Form 1 for Seq 17)	Aggravated indecent assault	“a meaningful increase”
Seq 16	Aggravated incite act of indecency	“above the mid-range”
Seq 17, 19, 20 & 21	Incest with person ≥ 16	“above the mid-range”
Seq 18 (Form 1 for Seq 19)	Incest with person ≥ 16	“meaningful increase”

The applicant’s background and personal circumstances

42. Evidence in the defence case was confined to the tender of a report by a psychologist, Ms Kris North, and the applicant’s curriculum vitae.

43. The applicant was born in 1974. The judge noted that he had no prior criminal history but said that the absence of a previous criminal history is of reduced significance for offences of this kind.

44. He gave an account of growing up within a strict Catholic family. He was often responsible for three younger siblings as both his parents worked. There was harsh physical punishment when he was a child and he described this as culturally acceptable and did not consider it as abusive.

45. The applicant described himself as an above average student. He completed secondary school and then obtained an undergraduate degree in mechanical engineering. He worked with a manufacturing company and obtained a master’s degree in manufacturing management in 2007. Thereafter, his employment involved responsible supervisory and management positions with various manufacturing enterprises.

46. The applicant and his wife have four children, two adult daughters and two young sons. He told Ms North his wife was “devastated” when he was charged and had since forgiven him. His wife’s brother and sister-in-law had been supportive of the victim.

47. The applicant denied any mental health issues and Ms North did not assess him as meeting the criteria for any mental health diagnosis. Her testing revealed mild anxiety, moderate depressive symptoms, and a low risk for sexual recidivism. (The latter result was according to the Static-99R and STABLE-2007 tools.) Despite this, Ms North concluded her report with recommendations for sex offence specific treatment to address the applicant’s risk for sexual recidivism.

48. The applicant told Ms North that because he had not known the victim until she was aged five, he had never formed a father-daughter bond and he began treating her as a young adult from early adolescence. He claimed that she was sexually active from the age of 13 and he “took advantage of their close relationship and ‘crossed the line’”.

49. He told Ms North he was “not thinking logically” at the time of sending the emails to the victim.

50. Ms North reported that “the sexual offending occurred following a period of marriage difficulties, consistent with research which has indicated a risk factor for father-daughter incest to include a poor and/or unaffectionate relationship between husband and wife, particularly with regard to reduced access to marital sex”. She also cited research indicating a deterioration in the mother-daughter relationship being a risk factor as well, noting in relation to it the applicant’s observation that his wife and the victim did not have a close relationship at the time of the offences.

51. Ms North also reported:

“However, despite accepting responsibility and expressing remorse for his behaviour Mr [Carrington] tended to minimise the impact of his offending on [the victim], and alluded to her making ‘advances’ towards him, indicating he attributed partial responsibility to his daughter.”

52. Ms North referred to the applicant having expressed remorse and that he accepted responsibility for his behaviour. What prompted her to say this was not stated in the report. The judge said he did not accept the expressions of remorse and was unable to make a positive finding about the applicant’s prospects of rehabilitation. The latter was:

“the more so because the wife with whom you intend to live after you are released from prison continues to deny her own child’s sufferings and your role in it”.

Ground 1 – failure to have regard to significant positive evidence relating to remorse, prospects of rehabilitation and likelihood of reoffending

53. The submissions in support of this ground include that the judge did not have regard to evidence that could have significantly advanced the applicant’s case on the three mitigating factors mentioned. It was conceded that if his Honour had considered the evidence in question, it may nevertheless have been open to him to find an absence of remorse and not be satisfied there were good prospects of rehabilitation or an unlikelihood of reoffending. ^[2]

    2. Applicant written submissions (AWS), 23 April 2021, [33], [46]

54. In relation to remorse, it was submitted the judge overlooked the pre-text telephone conversation in which the applicant acknowledged he had done horrible things to the victim and he was sorry. It was subsequent to that, however, that the applicant gave his partially victim-blaming account to Ms North. It was unsurprising then that counsel who appeared for the applicant in the District Court did not attempt to persuade the judge that he could find remorse on the basis of the telephone conversation. Defence counsel also conceded that the lack of insight evident from what the applicant had told Ms North indicated the need for treatment. ^[3]

    3. POS, p 7.30

55. The difficulties in laying claim to a finding of genuine remorse fed into similar difficulties in establishing good rehabilitation prospects and unlikelihood of reoffending. In this Court, counsel submitted that the absence of remorse, while relevant, did not necessarily require negative findings on these issues. This may be accepted. It was submitted that the judge erred by making no reference to the 10 years that had elapsed with no reoffending, to the offending having occurred in a short period and in specific circumstances, to the assessment by Ms North of a low-risk of recidivism, and to the support of the applicant’s family.

56. These contentions ignore the case that was presented to the sentencing judge. Where concessions are made by counsel that a mitigating factor is not established, it is not incumbent upon a judge to go behind the concession and refer to every piece of evidence that may be of potential relevance to the point that counsel has not sought to make. In this case, counsel conveyed to the judge that it was premature to be saying the applicant’s rehabilitation prospects were “good” or that he was unlikely to reoffend: ^[4]

“[B]ut there obviously is a long road to go in terms of the type of insight that the Court would consider is necessary before the Court could say he’s got positive prospects of rehabilitation and he’s not going to reoffend.

But that again is not an unusual scenario to be confronted with when dealing with untreated sex offenders. The importance of it I say is that there has been some progress. There is clearly a long way to go, and Ms North clearly identifies that there are issues that need to be dealt with, and that is important obviously as I say for your Honour’s assessment of the prospects.”

4. POS, p 7.41-7.50

57. There is no basis to assert error by the sentencing judge in not making a finding that counsel in the court below did not seek.

58. This ground must be rejected.

Ground 2 – manifest excess

59. The principles concerning alleged manifest inadequacy or excess in a sentence are well-settled and need not be restated. They are summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

60. The applicant relied upon sentencing statistics, with acknowledgement of their limitations. There was no reliance upon sentencing in other cases because there was said to be an “absence of similar comparable cases”. ^[5]

    5. AWS, [65]

61. It was accepted that there was no error in the partial (notional) accumulation of indicative sentences in arriving at the aggregate sentence imposed, and that there was a need for individual terms to reflect the additional offences on the Forms 1 being taken into account. ^[6] The critical point in the applicant’s submissions was that “the combined length of the indicative sentences and the degree of their notional accumulation has resulted in an aggregate sentence that is excessive having regard to the total criminality of the applicant’s conduct and his subjective circumstances”.

    6. AWS, [72]

62. A secondary point made by the applicant was that there should have been a finding of special circumstances on account of the combined force of positive evidence concerning the issues of remorse, rehabilitation and unlikelihood of reoffending.

63. The Crown acknowledged the limitations of the statistics and indicated that it was not able to identify any comparable cases either. It submitted that the fundamental question for the Court was whether the aggregate sentence was manifestly excessive when viewed against the total criminality that fell to be reflected in it. (There is no doubt about that: JM v R [2014] NSWCCA 297 at [40](13).)

64. The Crown pointed to the seriousness of the offending and the concession by counsel for the applicant before the sentencing judge that the overall criminality was “high”. ^[7] In relation to the incest offences it contended that “it is difficult to imagine a more serious example of incest than a father upon his natural daughter”. ^[8]

    7. POS, p 10.26

    8. Crown written submissions (CWS), [45]

65. There were four features of the incest offences that required an assessment of their objective seriousness at a relatively high level. First, the offence is concerned with the victim being aged 16 and above and here the victim was at the lowest end of that range. Second, it is concerned with sexual intercourse with a “close family member” which is defined as “a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild”: Crimes Act, s 78A(2). This case involves a father having intercourse with his 16 year old daughter which involves a clear and significant breach of trust. Third, there is the fact that the incest offences for which the applicant was sentenced, or asked to be taken into account, were not isolated instances but were part of a course of conduct over a significant period. Finally, the victim was not a willing participant. (Acknowledging the need to ignore any question of the applicant being aware of that fact for the reasons given earlier, at [11].) The combination of these features required an assessment of criminality above the mid-range. There is no complaint about the judge’s finding in that regard.

66. The applicant’s subjective case included that he had no previous convictions and was otherwise of prior good character. His prospects of rehabilitation were dependent upon him engaging with the type of treatment recommended by Ms North, to which he claimed to be committed. The applicant also had the benefit of early pleas of guilty which attracted a 25% reduction which was applied to each of the indicative sentences.

67. The point of making an assessment of the objective seriousness of an offence is to enable the sentencing judge to apply the maximum penalty prescribed for an offence (and a standard non-parole period if there be one) as a legislative guidepost: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and R v West [2014] NSWCCA 250 at [27] where Adamson J also referred to the maximum penalty being the sentence that Parliament considers ought be reserved for the worst type of case, citing Ibbs v The Queen (1987) 163 CLR 447 at 451-2; [1987] HCA 46 and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

68. In the present case the starting points for each of the indicative sentences are at, or very close to, the maximum penalty. None of them were found to be in the worst case category or in the high range of objective seriousness. True it is that four of the five indicative sentences had to incorporate an upward increment because other offences were being taken into account and there was a consequential need to give additional emphasis to retribution and personal deterrence: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].

69. For convenience, a summary of the offences with the judge’s finding as to objective seriousness and his assessed starting points follows.

Offence	Maximum	Seriousness	Starting point
Seq 1: AOABH	5 years	Above the mid-range and into the upper range	4 years
Seq 16: Aggravated incite act of indecency (Form 1: 2 x AOABH)	5 years	Above the mid-range	5 years
Seq 17: Incest (Form 1: 1 x Aggravated indecent assault)	8 years	Above the mid-range	7 years
Seq 19: Incest (Form 1: 1 x Incest)	8 years	Above the mid-range	7 years
Seq 21: Incest (Form 1: 1 x Incest)	8 years	Above the mid-range	7 years

70. As an indication of how the principle of totality was applied by the sentencing judge, it is of note that the sum total of each of the indicative sentences is 22½ years and the aggregate sentence was 16 years. This indicates a quite significant notional accumulation of the indicative terms. This substantially dilutes the benefit to which the applicant was entitled for his pleas of guilty. The aggregate sentence was a heavy one even for an offender who had been found guilty at trial.

71. I am satisfied that the sentence is manifestly excessive.

72. Nothing that has been said above is intended to convey that the offences were not extremely serious. They clearly were and the impact upon the victim may be taken to have been both serious and enduring. The need for this Court to intervene does not arise from any different view that has been taken about these matters. It is necessary to intervene to ensure that a sentence has been imposed in accordance with legal principles, and that is reflective both of the offences for which the applicant was prosecuted, the maximum penalties that apply to them and the subjective circumstances, including the pleas of guilty.

Resentencing

73. As indicated above, the judge’s assessment of the objective seriousness of the offences was not challenged. They accord with my own view on the subject.

74. The applicant’s subjective case has been summarised above. An affidavit by the applicant was read in the event of resentencing. Since being sentenced he has engaged in two vocational courses and has been involved in employment that has been of benefit to other inmates in an educational as well as recreational sense. He has been afforded opportunities for religious and spiritual fulfilment and has maintained contact with his family in the limited ways that have been available during the pandemic.

75. There is nothing in the further evidence that is relevant to the question of remorse. Further, it seems to be the case that the applicant still has the support of his close family, but there is no suggestion of any change in their unsupportive attitude towards the victim.

76. The evidence of the applicant’s conduct in prison is pertinent to his rehabilitation prospects but no explicit submission was made that the evidence now justifies a finding that his prospects are good. Even if such a submission may be implied, I would not uphold it while it remains questionable whether the applicant fully comprehends and accepts the immorality and heinousness of his criminal misconduct towards his daughter.

77. The sentences I would assess for each of the five offences, applying the 25% reduction for the pleas of guilty, are as follows.

Offence	Starting point	Indicative term
Seq 1: AOABH	3 years, 6 months	2 years, 8 months
Seq 16: Aggravated incite act of indecency ● Form 1: Seq 3 and Seq 4 – AOABH x 2	3 years, 6 months	2 years, 8 months
Seq 17: Incest ● Form 1: Seq 5 – Aggravated indecent assault	5 years, 6 months	4 years, 2 months
Seq 19: Incest ● Form 1: Seq 18 – Incest	5 years, 6 months	4 years, 2 months
Seq 21: Incest ● Form 1: Seq 20 – Incest	5 years, 6 months	4 years, 2 months

78. It would be contrary to principle, and the facts of the case, to find that there are special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act. There is nothing sufficiently special in the applicant’s subjective case to justify a reduction of the non-parole component of the sentence that has not already been taken into account in setting the overall term of the aggregate sentence proposed.

79. The aggregate sentence proposed comprehends and reflects the overall criminality of the offending: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].

Orders

80. I propose the following orders:

1.   Grant leave to appeal and allow the appeal.

2.   Quash the sentence imposed in the District Court on 29 October 2020.

3.   Sentence the offender to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years, 6 months. The commencement date of the sentence is 29 January 2020.

Note that the non-parole period will expire on 28 July 2027 whereupon the offender will become eligible for release on parole.

4. Revoke the suppression order and the non-publication order made in the District Court on 20 August 2020 and in lieu, note the application of s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 prohibiting identification of the victim and the offender.

81. DHANJI J: : I have had the advantage of reading in draft form the reasons of R A Hulme J. I agree with the orders proposed by his Honour and, subject to what follows with his Honour’s reasons.

82. In circumstances where the applicant concedes the particular findings of the sentencing judge were open, the real complaint is with the sentencing judge’s reasons (or lack of them) with respect to those findings. As R A Hulme J points out, it is necessary to read the sentencing judge’s reasons in the context of the case that was put. When regard is had to that context I agree, for the reasons given by R A Hulme J, that no error has been established.

83. With respect to ground 2, I agree that the sentence imposed at first instance is manifestly excessive. I also agree with the new sentence proposed. As with R A Hulme J this is not the result of any different view of the seriousness of the conduct, but rather my view of the application of proper sentencing principles to the circumstance of the offences and the offender viewed against the offences charged including the prescribed maximum penalties.

84. For my part I would have commenced with starting points for the indicative sentences that are lower than those selected by R A Hulme J. For example with respect to Seq 1, while not taking any different view of the objective seriousness, having regard to the fact that the applicant was at that stage a person of prior good character, I would have selected a starting point of 2 years. In doing so I do not mean to suggest that the indicative sentence for this offence should be determined as if it stood on its own. Clearly the applicant’s subsequent behaviour meant he could not be sentenced on the same basis as a person facing a single charge. With respect to the other offences, my starting point would be slightly, but not significantly, lower than that of R A Hulme J. I would, however, impose a greater degree of cumulation to reflect the ongoing nature of the ordeal to which the victim was subject (though care must be taken given that the sentence for each offence is to be determined on the basis it is not an isolated event). The complainant was a child living in the family home. The applicant’s role was to assist in nurturing her. The offences, and the repetition involved, reflected an abysmal failure.

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Endnotes

Decision last updated: 05 November 2021